Rafay lawyer challenges evidence

By Sara Jean Green
Seattle Times Eastside bureau

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After a deputy prosecutor spent more than six hours over two days addressing the jury during closing statements, Rafay's attorney, Marc Stenchever, said yesterday the state has dragged out the aggravated first-degree triple-murder trial for nearly six months by dissecting "meaningless evidence."

He pointed out inconsistencies between the physical evidence found at the Rafays' Somerset neighborhood home and "the story" Burns and Rafay told undercover Canadian police officers whom the two defendants believed were big-money criminals.

He said Burns and Rafay falsely confessed because they believed Bellevue police were fabricating evidence against them and needed the criminals' help to destroy it. Stenchever told the jury the two Canadian citizens were aware Canadian police could do things such as break into a home or steal a car in order to plant microphones — things Canadian officials did as part of a five-month sting operation that ultimately led to the defendants' arrests in July 1995.

Stenchever reminded jurors that two neighbors told police they heard hammering sounds from the Rafay home on the night of July 12, 1994, between approximately 9:45 p.m. and 10:15 p.m. The two neighbors said the noises stopped "25 to 30 minutes before Mr. Rafay could have been in that house," Stenchever said, pointing to other witnesses who had placed Rafay and Burns inside a Factoria movie theater from at least 9:50 p.m. to 10:05 p.m.

"Don't presume they're guilty just because (Bellevue police Detective) Bob Thompson did ... and don't ignore the evidence that Atif Rafay is innocent and was somewhere else when his family was slaughtered," Stenchever said.

The state contends Burns and Rafay, now 28, slipped out of the theater early, killed the family, staged a burglary and then went to a Seattle diner before returning to Bellevue to "discover" the bloody crime scene and call police. Prosecutors say the two confessed a year later during a Canadian undercover police operation dubbed "Project Estate."

Stenchever challenged an assertion made a day earlier by deputy prosecutor James Konat, who said no one could say for certain that what the neighbors heard were indeed the sounds of murder.

"Neighbors clearly heard the sounds of the murder because what else could those sounds have been?" Stenchever asked.

He also mentioned fingerprints found inside the house and a single hair found in the bedsheets of Rafay's father, Tariq Rafay, that didn't match Burns, Rafay or any of the victims. Though the state contends 21 hairs found in a shower belonged to Burns — and therefore indicated Burns showered after bludgeoning Tariq, Sultana and Basma Rafay with a baseball bat — Stenchever told the jury no DNA analysis was done and that a scientist could conclude only that the hairs weren't inconsistent with Burns' hair.

Stenchever also said the story Burns and Rafay told undercover operators with the Royal Canadian Mounted Police just doesn't add up. For instance, Rafay said in a videotaped "confession" that he witnessed only his mother's death. But the forensic evidence indicates at least two people, possibly three, were in Tariq Rafay's room when he was attacked in his sleep, Stenchever said.
 
Burns' attorney, Jeff Robinson, is to make his closing statements today, which will be followed by the state's rebuttal. The case then will be handed over to the jury.

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com